BNUMBER:  B-281632 
DATE:  March 15, 1999
TITLE: RMG Industrial Sales, B-281632, March 15, 1999
**********************************************************************

Matter of:RMG Industrial Sales

File:     B-281632

Date:March 15, 1999

David R. Williams, Esq., for the protester.
Robert M. Andersen, Esq., U.S. Army Corps of Engineers, for the 
agency.
Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where substantial activity had transpired in evaluating quotations 
prior to contracting agency's receipt of protester's amended final 
quotation, which was received after the deadline for submission of 
final pricing, agency was not required to consider that final 
quotation.

DECISION

RMG Industrial Sales protests the U.S. Army Corps of Engineers' 
refusal to consider RMG's revised quotation submitted in response to 
request for quotations (RFQ) 
No. DACW29-99-Q-0019, for replacement parts for the sector-gates of 
the Leland Bowman Lock on the Gulf Intracoastal Waterway in Vermilion 
Parish, Louisiana.

We deny the protest.

The RFQ was issued as a total small business set-aside on October 26, 
1998, using local facsimile and electronic data interchange (EDI) 
techniques.  The procurement was conducted under the simplified 
acquisition procedures set forth in part 13 of the Federal Acquisition 
Regulation.  The time established for receipt of quotations was noon 
on November 2.  The government estimate was $80,000.  Three quotations 
were received as follows:

            RMG                  $94,643

            Multi Metals, Inc.   $99,045

            Stewart Machine Co.  $179,400
On November 3, the contracting officer concluded that the prices 
quoted were too high because of the short delivery schedule and 
possibly restrictive requirements relating to materials to be used in 
fabricating the parts.  On November 5, the agency issued amendment No. 
0001 which extended the delivery schedule for certain parts, relaxed 
materials requirements and established close of business on November 
9, 1998 as the time for receipt of revised quotations.  Five 
quotations were received as follows:

       RMG                                 $89,887.60

       Multi Metals, Inc.                  $90,849.00

       Dixie Machine Welding & Metal Works, Inc.$95,765.85

       Boland Marine Manufacturing Co., Inc.$106,773.00

       Stewart Machine Co.                 $110,000.00
The contracting officer evaluated the revised quotations and conducted 
a review of RMG because the agency had no prior contracting history 
with the firm.  He then contacted each vendor and asked for price 
verification by November 12 in an attempt to ensure that they had a 
clear understanding of the agency's requirements.  Four verifications 
were received as follows:

       Multi Metals, Inc.      $89,099.00

       Dixie                   $89,352.00

       RMG                     $89,887.60

       Boland Marine           $104,300.00
Multi Metals, Inc. withdrew its quotation on November 16.  On November 
17 at about 3 p.m., the contracting officer telephonically contacted 
Dixie and offered to issue the firm a purchase order, which Dixie 
accepted verbally.  Dixie was also informed that a formal confirmation 
under "contract" number DACW29-99-M-0057 would follow and was 
authorized to commence performance immediately.  On the same day, the 
contracting officer then signed and issued a document entitled a 
"Purchase Order" bearing the "contract" number referred to in the 
telephone call and containing the following statement:  "CONFIRMATION 
OF VERBAL AWARD ISSUED ON 17 NOV 1998."  The agency reports that the 
"Standard Army Contracting System ('SAACONS') automatically generated 
and transmitted notice of award to the EDI system on November 17, 
1998."[1]  Agency Report at 2.

At 8:21 p.m. on November 17, after the close of business, RMG 
submitted a revised quotation in the amount of $84,493.72 by 
facsimile.  The contracting officer received the quotation on the 
morning of November 18.  Thereafter, at approximately 10 a.m., the 
contracting officer telephonically informed RMG that another vendor 
had been issued a purchase order and that the protester's quotation 
could not, therefore, be considered.  Following the protester's 
receipt on November 23 of a letter effectively denying what the agency 
considered to be an agency-level protest filed on November 18, this 
protest was filed with our Office on December 3.

RMG's position is essentially that the contracting officer was 
required to consider the protester's final low quotation because no 
contract was in effect when the quotation was received.  RMG bases its 
argument on the proposition that, in order for a binding contract to 
have been in effect, Dixie would have had to accept the agency's offer 
in writing.  RMG concludes, therefore, that the contracting officer 
abused his discretion in refusing to consider the protester's final 
quotation.

The simplified acquisition procedures emphasize efficiency rather than 
formal procedures and, where using these procedures, an agency has 
considerable discretion in its approach, so long as it promotes 
competition to the maximum extent practicable.  West Coast Research 
Corp., B-281359, B-281359.2, Feb. 1, 1999, 99-1 CPD  para.  ___ at 4.  In 
circumstances such as here, where the solicitation does not contain a 
specific late quotations provision requiring receipt of quotations by 
a specified date in order to be considered but instead merely calls 
out a due date, the agency should normally consider any quotations 
received prior to the selection decision if no substantial activity 
has transpired in evaluating quotations.  Adrian Supply Co., B-235352, 
Aug. 2, 1989, 89-2 CPD  para.  99 at 2.

However, here the agency was not, even in the alleged absence of a 
contract between the Corps and Dixie, required to consider RMG's 
quotation.  The contracting officer had already begun the purchase 
order issuance process by the time he actually received RMG's 
quotation.  He had examined the quotations received, prepared an 
abstract, determined to issue a purchase order to Dixie, issued 
confirmation of a verbal agreement with Dixie, and dispatched notice 
to the EDI system.  Thus, substantial activity in evaluating 
quotations and processing the purchase order had already occurred 
before the contracting officer was aware that a revised quotation had 
been submitted by RMG.  As a result, the Corps was not required to 
consider RMG's late quotation.  Id. at 3.

The protest is denied.

Comptroller General
of the United States

1. The EDI entry was made available to the public at 11:05 a.m. on 
November 20. Protest, Dec. 3, 1998, final exhibit.